Hansen v. Milwaukee Coke & Gas Co.

KehwiN, J. We think the court below was right' in granting a nonsuit. There is no evidence in the record sufficient to carry the case to the jury on the question of defendant’s negligence. Counsel for appellant argues that the coal-raising apparatus in question used to operate the large coal bucket was a “gearing,” a “hoist,” or an “elevator” within the meaning of sec. 1636.;, Stats., and should have been guarded; that the counterweight was so located as to be dangerous to employees in the discharge of their duties; and that the failure to guard was the cause of the injury and death of deceased. The principal part' of appellant’s argument is devoted [238] to tbis subject. It is insisted by counsel for appellant that the judgment of nonsuit was granted on the ground that the case does not come within the provisions of sec. 1636/, hence there was no duty upon the defendant to guard the counterweight. But it will be seen from an examination of the opinion of the court below that the nonsuit was not based upon that ground alone; the court also held that the plaintiff failed to establish that the deceased met his death while in the line of his duty imposed by his employment, and that the evidence is insufficient to place the liability upon the defendant ill any event. In the view we take of the case it' is unnecessary to consider whether the counterweight was a gearing, a hoist, or an elevator which the statute required to be guarded, because in any view of'the case there is no evidence sufficient to warrant the jury in finding that any negligence of defendant contributed to the injury or death of the deceased. The whole question as to how deceased came in contact with the counterweight is matter of conjecture. Upon the undisputed evidence this case is ruled in respondent’s favor by the following cases in this court: Hamann v. Milwaukee B. Co. 127 Wis. 550, 106 N. W. 1081; Hyer v. Janesville, 101 Wis. 377, 77 N. W. 729; Kaszubowski v. Johnson S. Co. 151 Wis. 149, 138 N. W. 54; Stock v. Kern, 142 Wis. 219, 125 N. W. 447. We deem further discussion of the case unnecessary. We are convinced that the court' below was right in ordering a nonsuit. By the Court. — The judgment is affirmed.